Was safety reporting the real victim?
Some recent events indicate that the program may be faltering. "Legal Briefing: One that Didn't Work" (October 2007 AOPA Flight Training) discussed a case in which a pilot's certificate was suspended for 240 days--even though he had filed a "NASA report." Ordinarily, a pilot can avoid sanctions in an FAA enforcement action as long as he or she can establish that a timely report of a flight's events was made. Any violation committed must have been "inadvertent and not deliberate."
A more recent case shows how the FAA is strictly interpreting this factor and the NTSB is following the agency's lead. A pilot was getting checked out in a Cirrus, which he had never flown before, with a certificated flight instructor. They were flying out of the Baltimore-Washington International Airport (BWI), located within the Washington, D.C., Metropolitan Area Air Defense Identification Zone (ADIZ). The pilot had not flown out of BWI in 25 years, so he was also getting training from the CFI on how to fly in and out of BWI in light of the new ADIZ requirements.
The CFI filed an ADIZ flight plan for their flight. On their return flight into BWI, the FAA alleged that they did not squawk the assigned discrete transponder code before entering the ADIZ and they did not get ATC authorization to operate into BWI's Class B airspace. The FAA said that the pilot's operation of the aircraft was careless or reckless so as to endanger the lives and property of others.
At the hearing, the pilot said that he was not pilot in command of the flight, although he agreed that he flew the aircraft into the ADIZ and into the Class B airspace. The pilot also maintained that any violations committed were inadvertent and not deliberate and that he was thereby entitled to a waiver of sanction because he had filed a NASA report in a timely fashion. The NTSB administrative law judge upheld the FAA's allegation and denied the pilot's entitlement to a waiver of sanction after concluding that the pilot's actions were not inadvertent.
On appeal, the NTSB affirmed the law judge's decision that the pilot violated the regulation and should be made to serve a 30-day suspension. The NTSB agreed that the pilot was not the PIC of the flight, and reversed the FAA and the law judge on that point; nonetheless, the board decided that the pilot operated the aircraft by manipulating the controls and directing the course of the aircraft, and that was sufficient.
"[I]n order to establish violations in this case, all that need be shown is that respondent operated or flew the aircraft in the Class B and ADIZ airspace. Although the Administrator undertook to show also that respondent was the PIC, the Administrator has not been able to do so, primarily because this was an instructional flight and an instructor was on board...[and]...we have long held that an instructor is the PIC on an instructional flight."
The NTSB found that the pilot had not proven that his actions were inadvertent. "Whether he intended to violate the FAR, respondent was not unaware that he was flying into restricted airspace. That he chose not to ensure that he was complying with the restrictions and limitations of that airspace does not transform his actions from deliberate or advertent to not deliberate or inadvertent."
It is unfortunate that this pilot was not able to avoid the imposition of the suspension by relying on his report to NASA based on the NTSB's finding that he failed to "ensure" that his actions were in compliance with the FAR. In the dictionary, ensure is synonymous with guarantee. Disturbing. It had been my experience that it was somewhat rare for a pilot to be denied the ASRS waiver, especially in airspace cases. Historically, the ASRS has been a respected, useful, and important program for pilots to remember in the interest of aviation safety. However, the pilot's entitlement to ASRS program benefits is not unfettered, and there are important exceptions to the program that the pilot should also understand--the deliberateness of the pilot's conduct being one of them.
Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.
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